Have We Been Invaded?
The classic definition of an invasion, often invoked by politicians to rally public support for their policies, is the incursion of an armed force into a country, such as the Allied landing at Normandy in 1944. However, this traditional understanding of an invasion implies an army arriving to conquer or plunder. In contrast, modern legal dictionaries define "invasion" more broadly as "the act or occurrence of entering a place or domain in an unauthorized manner," encompassing scenarios such as home invasions by burglars or computer hacks.
However, the definition of "invasion" has taken on a new, more Orwellian meaning under the presidency of Donald Trump. During his campaign trail, he repeatedly referred to migrants as "invaders," despite the fact that this characterization is inaccurate and divisive. In 2023, hard-right Texas Governor Greg Abbott claimed that his state was being "invaded" by undocumented immigrants, prompting him to deploy a bright orange chain anchored to the Rio Grande River as part of an attempt to stem illegal immigration and drug trafficking.
The Biden administration sued Abbott's decision, arguing that it violated federal law. Mexico demanded the removal of the buoys, but the Fifth Circuit Court ultimately upheld Abbott's action, sidestepping the question of whether it was justified as a response to an "invasion." This ruling has significant implications for immigration policy in Texas and Louisiana, which are both covered by the court's jurisdiction.
Moreover, Trump has used the concept of invasion to justify his inhumane actions against Venezuelan migrants, including summarily deporting them to a hellhole prison in El Salvador. Some of Trump's closest advisors have also discussed using the invasion card to suspend the writ of habeas corpus, effectively allowing for indefinite detention without trial.
A federal judge named James C. Ho has taken this concept even further. Ho, appointed by Trump in 2018, recently wrote a separate opinion arguing that illegal immigration can constitute an "invasion" under the Constitution, empowering governors to take military action without congressional consent. Without evidence, Ho claimed that states can repel invasion "by hostile foreign individuals as well as foreign sovereigns," effectively presuming all unauthorized immigrants to be hostile actors.
Ho's assertion is particularly egregious, as he is claiming that many migrants are criminals or terrorists without any evidence. Citing Article I, Section 10 of the Constitution, which forbids states from engaging in war without congressional consent unless "actually invaded" or in "imminent danger," Ho argued that states may act without Congress in cases involving invading "hostile foreign individuals." However, this is a non-justiciable political question, requiring fact-finding and legal analysis.
Ho's views are also strikingly partisan, as he leans on the dissenting opinion of his mentor, Justice Clarence Thomas, to justify his interpretation. Furthermore, Ho has taken staunchly conservative positions on several high-profile issues, including a 2023 decision to argue that the Food and Drug Administration should overturn its approval of the abortion drug mifepristone due to regulatory errors.
Ho's alignment with Trump's agenda is also evident in his recent change of heart on birthright citizenship. In 2006, Ho gave unequivocal support to the constitutional guarantee of birthright citizenship, but just a week after Trump was re-elected, he appeared to back away from this stance, suggesting that the Fourteenth Amendment does not guarantee citizenship for all children born on U.S. soil.
In conclusion, James C. Ho's judicial opinion represents a disturbing trend in modern American politics, where the concept of invasion is being used to justify authoritarian and xenophobic policies. His views are eerily reminiscent of Orwellian propaganda, where "the lie passes into history and becomes the truth." As such, it remains to be seen whether his opinions will have lasting implications for immigration policy in the United States.